In Canada, the courts acknowledge the autonomy of a person making a will (known as a “testator”). They are, for the most part, able to dispose and divide their assets as they choose. However, sometimes a spouse or child may feel that they did not receive their fair share of the estate and choose to contest or challenge the will. A parent may have disinherited them or they may feel that their portion was undercut.
Whatever the case, there are provisions under British Columbia law for people who want to contest a will.
There are three primary categories of grounds under which a will may be contested or challenged. Within these categories, there may be subsections that further clarify the reasoning for the action. These grounds must be clearly described and solid supporting evidence must be presented in order for the action to be successful.
Spouse or Dependents were not Adequately Supported
The court can deem that a will does not adequately support the testator’s spouse or dependents. In such cases, the court will order what it determines to be equitable, just, and adequate. The decision will be based on the testator’s legal obligations to the individual as well as their moral duties. This depends on a variety of factors and the person contesting the will must present supporting evidence that supports any claims made.
In making this determination, the court may consider:
- If the parties were legally married off if they had a separation agreement between them.
- The level and types of contributions that the spouse and dependents may have made to the estate.
- The size of the family of the testator.
- Any financial needs that the spouse or dependents may have.
- Any gifts (including value) that the testator may have given the spouse or dependents during his or her lifetime.
- The nature or type of relationship that the testator had with the spouse and dependents.
- Any competing moral claims.
- The length of the marriage.
- The status of claimants who may be maintained by the state.
- The standard of living that the testator upheld for the spouse or dependents, that they were allowed to grow accustomed to, their station in life, as well as any aspirations or goals that are reasonable and consistent with someone who maintains that standard of living.
- Any future needs that the spouse or dependents may have.
- Any conditions in the will that are restrictive.
- The size of the estate.
Interpretation of the Will
When reviewing a will, the court will often first seek to determine the validity of the will, then try to establish the testator’s intentions. This involves a review of how the will is constructed, including the language and verbiage of the testator, their expressions, and background or life experiences. This will try to create as clear a picture as possible of all the things that the testator knows at the time he or she created the will with particular emphasis on those things that may have had a bearing on the decisions outlined within.
If the court is unable to determine the testator’s actual meaning and intent from the will, as well as the circumstances that surrounded it, then the will be interpreted using principles of construction. The court will apply operating assumptions and rules that presume meaning and intent with a strong basis in context.
The validity of the Will
The court may deem the will to be invalid if one or more of these circumstances can be shown and proven:
- The will does not make provisions for the spouse or dependents
- The will was not properly executed – it must
- Be in writing.
- Contain the signature of the testator or their appointed representative.
- Contain the signatures of at least two witnesses who were physically present at the time the testator signed the will.
- The witnesses must sign the will in the presence of the testator and the testator must sign the will in the presence of the witnesses. The only exception is if the testator is in the armed forces.
- Be created by a testator who is no less than 19 years of age. The only exceptions to this are if the testator was married or is in the armed forces.
- The testator lacked the mental capacity to make informed and aware judgments.
- The testator did not approve the contents of the will or did not know what was included in it.
- There was a mistake in the will.
- The will was signed or changed under undue influence by an individual or party.
- The will was revoked by the testator.
If you are contesting a will, don’t try to do it yourself. Your best chance at success is to hire a lawyer who has experience and training in challenging wills. Call the offices of McLarty Wolf Litigation Lawyers and let us represent you in your case. Our education, experience, and personal commitment to the success of your case will help ensure that every care will be taken to see a favourable outcome for your case.